SMT. SWAPNA P.G., vs THE DIRECTOR,

CNR : KLHC011189982024
2026:KER:66890
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
ND
WEDNESDAY, THE 2 DAY OF SEPTEMBER 2026 / 11TH BHADRA, 1948
WP(C) NO. 23640 OF 2024
PETITIONER:
SMT. SWAPNA P.G.,
AGED 47 YEARS,
W/O.SARREV,SANEDOM HOUSE, VELIKKAKAM KALATHOOR (P.O),
KOTTAYAM, PIN – 686633.
BY ADVS.
SRI.GOPAKUMAR R.THALIYAL
SRI.R.B.BALACHANDRAN
SHRI.T.S.RAJASENAN
RESPONDENTS:
1 THE DIRECTOR,
M/S. MANGALAM PUBLICATIONS INDIA (P) LTD, S.H. MOUNT,
KOTTAYAM, PIN – 686006.
2 THE LABOUR COURT,
ERNAKULAM, PIN – 682031.
BY ADV SRI.PRINSUN PHILIP
SRI. M PRAVEEN KUMAR (GP)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.09.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT ‘C.R’
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The petitioner was working as a Sub-editor with the 1
respondent establishment from 01.10.2000. According to her, while
working as Sub-editor, she was transferred from Kottayam Desk to
Kannur Desk only to victimise her, and therefore the petitioner had
initiated proceedings before the District Labour Officer, Kottayam
seeking interference in the matter. In the meanwhile, primarily on the
allegation that there was a failure to join duty at Kannur, disciplinary
proceedings were initiated against the petitioner culminating in
Ext.P6 order dismissing the petitioner from service. After Ext.P6 order
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was passed, the 1 respondent filed Ext.P7 application before the
Labour Court, Ernakulam (Camp at Kottayam) under Section 33(2)(b)
of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the
1947 Act') seeking approval of the order dismissing the petitioner from
service. A perusal of Ext.P7 will indicate that an application was filed
under Section 33(2)(b) of the 1947 Act since CP Nos.29 of 2013, 10 of
2014 and 30 of 2014 were pending before the Labour Court at that
point of time. The Labour Court, on consideration of Ext.P7
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application, passed Ext.P8 order approving the action of the 1
respondent in dismissing the petitioner from service. This order of the

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Labour Court is under challenge in this writ petition.
2. The learned counsel appearing for the petitioner would
submit that Ext.P6 order is dated 19.02.2015 and on that date, the
conciliation proceedings initiated by the petitioner were pending
before the District Labour Officer, Kottayam. It is submitted that the
District Labour Officer, Kottayam had submitted his report to the
Government reporting failure of the conciliation proceedings in the
matter of the transfer of the petitioner from Kottayam to Kannur only
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on 20.05.2015. It is submitted that the 1 respondent ought to have
passed Ext.P6 order only after obtaining express permission in writing
from the District Labour Officer, Kottayam, as contemplated by the
provisions of Section 33(1)(b)of the 1947 Act. It is pointed out that
Section 33(1)(b) of the 1947 Act contemplates that the Management
shall obtain such express permission when the proceedings are
pending before the Conciliation Officer or a Board or an Arbitrator or
a Labour Court or Tribunal / National Tribunal are in relation to the
dispute which led to the order of dismissal and Section 33(2)(b) of the
1947 Act relates to an ex post facto approval being obtained for an
order of dismissal where the dispute pending before the authorities is
unconnected to the dispute which led to the order of dismissal. It is

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submitted that a perusal of Ext.P7 application will show that the
application under Section 33(2)(b) of the 1947 Act was filed in relation
to certain unconnected matters pending before the Labour Court. It is
submitted that in the facts of the present case, express permission as
contemplated by Section 33(1)(b) of the 1947 Act as well as approval
under Section 33(2)(b) of the 1947 Act were required, as a connected
issue was pending before the District Labour Officer, Kottayam and
unconnected issues were pending before the Labour Court. It is
submitted that Ext.P8 order of the Labour Court should not be treated
as permission under Section 33(1)(b) of the 1947 Act and it should be
limited to an approval from the Labour Court for passing the order of
dismissal pending the unconnected disputes, which were under
adjudication by the Labour Court. The learned counsel has placed for
my consideration the judgment of the Supreme Court in Lokmat
Newspapers Pvt. Ltd. v. Shankarprasad, (1999) 6 SCC 275, to contend
that in the facts of this case the proceedings before the Conciliation
Officer were pending on the date of Ext.P6 order of dismissal.
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3. The learned counsel appearing for the 1 respondent has
referred extensively to the provisions of Section 33(1)(b), Section
33(2)(b) and Section 33-A of the 1947 Act. He contends that there was

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no proceeding pending before the Conciliation Officer on the date of
Ext.P6 order of dismissal. It is submitted that the Conciliation Officer
had recorded the failure of the conciliation proceedings on
03.02.2015. It is submitted that the fact that the report to the
Government was sent only on 20.05.2015 does not mean that there
were any proceedings pending before the Conciliation Officer on the
date of Ext.P6. It is submitted that after recording the failure of
conciliation proceedings, the Conciliation Officer becomes functus
officio and he cannot thereafter grant any permission as contemplated
by the provisions of Section 33(1)(b) of the 1947 Act. It is submitted
that the consequence of failure to follow the provisions of Section
33(1)(b) of the 1947 Act is the filing of the complaint as contemplated
by the provisions of Section 33-A of the 1947 Act, and the petitioner
has not made out any case for setting aside Ext.P8 order of the Labour
Court. The learned counsel placed reliance on the judgment of the
Supreme Court in M/s. Punjab Beverages Pvt. Ltd., Chandigarh v.
Suresh Chand and Another, (1978) 2 SCC 144 to contend that when a
complaint is filed under Section 33-A of the 1947 Act, the employer
will get a chance to establish that the order of dismissal was justified.
4. Having heard the learned counsel appearing for the

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petitioner and the learned counsel appearing for the 1 respondent, I
am of the view that the petitioner is entitled to an order declaring that
Ext.P8 order of the Labour Court shall not be treated as a permission
granted for passing an order of dismissal under Section 33(1)(b) of the
1947 Act.
5. Section 33 of the 1947 Act to the extent it is relevant reads
thus:-
“33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings.-
(1) During the pendency of any conciliation proceeding
before a conciliation officer or a Board or of any
proceeding before an arbitrator or a Labour Court or
Tribunal or National Tribunal in respect of an industrial
dispute, no employer shall-
(a) in regard to any matter connected with
the dispute, alter, to the prejudice of the
workmen concerned in such dispute, the
conditions of service applicable to them
immediately before the commencement of
such proceeding; or
(b) for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, any workmen
concerned in such dispute,
save with the express permission in writing of the
authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect

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of an industrial dispute, the employer may, in accordance
with the standing orders applicable to a workman
concerned in such dispute or, where there are no such
standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the
workman-
(a) alter, in regard to any matter not
connected with the dispute, the conditions of
service applicable to that workman
immediately before the commencement of
such proceeding; or
(b) for any misconduct not connected with
the dispute, discharge or punish, whether by
dismissal or otherwise, that workman:
Provided that no such workman shall be
discharged or dismissed, unless he has been
paid wages for one month and an application
has been made by the employer to the
authority before which the proceeding is
pending for approval of the action taken by
the employer.”
It is clear from the reading of the aforesaid provisions of Section 33 of
the 1947 Act that where a connected issue is pending before the
Conciliation Officer, the Labour Court or Tribunal, an order of
dismissal could have been passed only after obtaining express
permission in writing from the authority before whom such
proceeding was pending. However, when the proceedings pending
before any of the authorities mentioned above are unconnected to the

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disciplinary proceedings, the provisions contemplate the filing of an
ex post facto application for approval of the order of dismissal. In the
facts of the present case, the petitioner had filed a complaint before
the District Labour Officer, Kottayam regarding her transfer from
Kottayam to Kannur. A perusal of Ext.P7 application will show that
the disciplinary proceedings initiated against the petitioner, which
finally culminated in Ext.P6 order of dismissal, were primarily in
connection with the failure of the petitioner to report for duty at
Kannur. Therefore, if any proceeding at the instance of the petitioner
was pending before the Conciliation Officer, Labour Court / Tribunal
regarding the transfer, a permission as contemplated by Section 33(1)
(b) of the 1947 Act was inevitable. Again, in the facts of the present
case, Ext.P7 application was filed in respect of CP Nos.29 of 2013, 10
of 2014 and 30 of 2014, which were pending before the Labour Court
at that point of time. It is not disputed before me that these
proceedings (that were pending before the Labour Court) are not
connected in any manner with the issues that led to the initiation of
disciplinary proceedings against the petitioner. Therefore, if, in the
facts of the present case, the conciliation proceedings were in fact
pending before the Conciliation Officer on the date of Ext.P6 order,

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the 1 respondent had to obtain permission as contemplated by
Section 33(1)(b) of the 1947 Act from the Conciliation Officer because
the issue which led to the disciplinary proceedings was intrinsically
connected with the issue pending before the Conciliation Officer. The
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1 respondent also had to obtain approval under Section 33(2)(b) of
the 1947 Act from the Labour Court as unconnected issues were
pending adjudication before the Labour Court at that point of time.
6. In the facts of the present case, the District Labour Officer,
Kottayam had communicated a failure report to the Government by
letter No.C.1365/2014 only on 20.05.2015 and Ext.P6 order was
passed on 19.02.2015. Paragraphs 25 and 27 of the Lokmat
Newspapers Pvt. Ltd. (supra) read thus:-
“25. The aforesaid statutory requirements leave no room
for doubt that after closing the investigation and after
having arrived at the conclusion that no settlement is
possible between the parties, the Conciliation Officer has
to spend some more time before submitting his detailed
written report about failure of conciliation for information
and necessary action by the State Government. In the very
nature of things, therefore, such requirement will take at
least a couple of days, if not more, for the conciliator after
closing the investigation to enable him to send an
appropriate report to the State Government. It is,
therefore, obvious that on 22-6-1982 when by 4.35 p.m.
the Conciliation Officer declared that settlement was not
possible between the parties and he closed the
investigation, neither did his statutory function come to an

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end nor did he become functus officio. His jurisdiction had
to continue till he submitted his report as per S.12(4) to the
appropriate Government. Even such preparation of the
report and sending of the same from his end to the
appropriate Government would obviously have taken at
least a few days after 22-6-1982. It must, therefore, be held
that the conciliator remained in charge of the conciliation
proceedings at least for a couple of days after 22-6-1982. It
is, therefore, difficult to appreciate how within half an hour
after the closing of investigation by the conciliator and
before his getting even a breathing time to prepare his
detailed written report about failure of conciliation to be
sent to the Government as per S.12(4), the appellant could
persuade itself to presume that conciliation proceedings
had ended and, therefore, it was not required to follow the
procedure of S.33(1) and straightaway could pass the
impugned order of retrenchment within 25 minutes of the
closing of the investigation by the conciliator on the very
same day. It is difficult to appreciate the reasoning of the
Labour Court that after the closure of investigation the
conciliator became functus officio and the Management
could not have approached him for express written
permission to pass the impugned order. It is easy to
visualise that even on the same day i.e. on 22-6-1982 or
even on the next day, before the conciliator had time even
to start writing his report, such an express permission
could have been asked for by the appellant as the
conciliator by then could not be said to have washed his
hands off the conciliation proceedings. He remained very
much seized of these proceedings till at least the time the
report left his end apart from the further question whether
conciliation proceedings could be said to have continued
till the report reached the State Government. Thus, on the
express language of S.12(4) the conclusion is inevitable
that closure of investigation by 4.35 p.m. on 22-6-1982 did
not amount to termination of conciliation proceedings by
that very time. The argument of learned counsel for the

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appellant was that closure of investigation automatically
amounted to termination of conciliation proceedings. This
argument proceeds on a wrong premise that closure of
investigation by the conciliator is the same as closure of
conciliation proceedings. The legislature while enacting
S.12(4) has deliberately not used the words "closure of
conciliation" but, on the contrary, provided that after
closure of investigation something more was required to be
done by the conciliator as laid down under S.12(4) before
he can be said to have done away with the conciliation
proceedings earlier initiated by him. On this conclusion
alone the decision rendered by the Division Bench of the
High Court that the impugned order of termination dated
22-6-1982 was issued by the appellant without following
the procedure of S.33(1) of the ID Act has to be sustained.
26. xxxxxx
27. A mere look at the aforesaid provisions shows that in
cases of public utility services referred to in S.22(2) of the
ID Act, the conciliation proceedings shall be deemed to
have commenced on the date on which a notice of strike or
lockout under S.22 is received by the Conciliation Officer.
That deals with commencement of mandatory conciliation
proceedings as laid down by S.12(1) read with S.20(1). But
when we come to S.20(2), it becomes obvious that the
legislature has introduced by way of legal fiction an
irrebuttable presumption as per sub clause (b) of S.20(2)
that when during conciliation proceedings no settlement is
arrived at between the parties, the conciliation proceedings
shall be deemed to have concluded when the failure report
of the Conciliation Officer is received by the appropriate
Government. Consequently, the legislative intention
becomes clear that conciliation proceedings initiated,
under S.12(1) whether of a discretionary nature or of a
mandatory nature shall be treated to have continued and
only to have concluded when the failure report reaches the
appropriate Government. As noted earlier, it is not in
dispute between the parties that after the closure of

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investigation on 22-6-1982 when the conciliator sent the
failure report, it reached the State Government only on 13-
8-1982. Therefore, it has to be held that the conciliation
proceedings in the present case had not got terminated
and got concluded only on 13-8-1982 as per the aforesaid
statutory presumption created by the legal fiction provided
in S.20(2)(b). Therefore, as a necessary corollary, it must
be held that these conciliation proceedings were pending
till 13-8-1982. It is axiomatic that conciliation proceedings
which are deemed not to have concluded must be deemed
to have continued or remained pending. That which is not
concluded is pending, equally that which is pending cannot
be said to be concluded.”
(Emphasis supplied)
It is, therefore, clear in the facts of this case that the proceedings
relating to the same issue, which led to the disciplinary proceedings
being initiated against the petitioner, were pending before the
Conciliation Officer (District Labour Officer, Kottayam) on the date
when Ext.P6 order was passed.
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7. The learned counsel appearing for the 1 respondent is
right in contending that the consequence of failure to follow the
provisions of Section 33(1)(b) of the 1947 Act would be the filing of a
complaint as contemplated by the provisions of Section 33-A of the
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1947 Act. The contention raised that the 1 respondent will get an
opportunity to justify the order of dismissal is also correct. In Punjab
Beverages Pvt. Ltd. (supra) it was held:-

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“11. It will, therefore, be seen that the first issue which is
required to be decided in a complaint filed by an aggrieved
workman under Section 33-A is whether the order of
discharge or dismissal made by the employer is in
contravention of Section 33. The foundation of the
complaint under Section 33-A is contravention of Section
33 and if the workman is unable to show that the employer
has contravened Section 33 in making the order of
discharge or dismissal, the complaint would be liable to be
rejected. But if the contravention of Section 33 is
established, the next question would be whether the order
of discharge or dismissal passed by the employer is
justified on merits. The Tribunal would have to go into this
question and decide whether, on the merits, the order of
discharge or dismissal passed by the employer is justified
and if it is, the Tribunal would sustain the order, treating
the breach of Section 33 as a mere technical breach. Since,
in such a case, the original order of discharge or dismissal
would stand justified, it would not be open to the Tribunal,
unless there are compelling circumstances, to make any
substantial order of compensation in favour of the
workman. In fact in Equitable Coal Co. case an order of
compensation made by the Tribunal in favour of the
workman was reversed by this Court. The Tribunal would
have to consider all the aspects of the case and ultimately
what order would meet the ends of justice would
necessarily have to be determined in the light of the
circumstances of the case. But this much is clear that mere
contravention of Section 33 by the employer will not
entitle the workman to an order of reinstatement, because
inquiry under Section 33-A is not confined only to the
determination of the question as to whether the employer
has contravened Section 33, but even if such contravention
is proved, the Tribunal has to go further and deal also with
the merits of the order of discharge or dismissal.”
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In the light of the finding that in the facts of the present case the 1

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respondent was required to obtain permission under Section 33(1)(b)
of the 1947 Act as also approval under Section 33(2)(b) of the 1947
Act, this writ petition can be disposed of clarifying that Ext.P8 order of
the Labour Court shall not be treated in any manner as compliance
with the provisions of Section 33(1)(b) of the 1947 Act and it will be
open to the petitioner to initiate any proceedings that she may be
advised to initiate on the basis that there has not been compliance
with the provisions of Section 33(1)(b) of the 1947 Act. I also make it
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clear that it will be open to the 1 respondent to justify the order of
dismissal on merits in the manner laid down in the judgment of the
Supreme Court in Punjab Beverages Pvt. Ltd. (supra).
Writ petition is ordered accordingly.
Sd/-
GOPINATH P.
JUDGE
DK

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APPENDIX OF WP(C) NO. 23640 OF 2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TRANSFER ORDER DATED
27.06.2013 ISSUED BY THE 1ST
RESPONDENT.
Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED
01.07.2013 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
03.03.2014 SUBMITTED BY THE GENERAL
SECRETARY OF KOTTAYAM JILLA SHOP AND
OTHER ESTABLISHMENTS MAZDOOR SANGH
(BMS) TO THE DISTRICT LABOUR OFFICER,
KOTTAYAM.
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED
02.01.2015 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT.
Exhibit P5 TRUE COPY OF THE ORDER DATED 13.07.2015
ISSUED BY THE GOVERNMENT.
Exhibit P6 TRUE COPY OF THE DISMISSAL ORDER DATED
19.02.2015 ISSUED BY THE 1ST RESPONDENT
Exhibit P7 TRUE COPY OF THE APPLICATION DATED
19.02.2015 FILED BY THE 1ST RESPONDENT
BEFORE 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF THE ORDER DATED 31.08.2015
PASSED BY THE 2ND RESPONDENT.